The opinion of the court was delivered by: ALESIA
Before the court is plaintiff Gallagher Asphalt Corporation's ("Gallagher") motion for a temporary restraining order that would order defendants (collectively, "the Union") to halt an ongoing strike of Gallagher. For the reasons that follow, the court grants the motion.
The facts boil down to these. The Union is striking Gallagher. Gallagher and the Union dispute the reasons for the strike. Gallagher claims that the strike is over its failure to pay three weeks' back pay to Union member Jim Russell, who Gallagher laid off, but who returned to work three weeks later at the Union's behest; as well as over Gallagher's use of laborers instead of operating engineers to perform certain work within its asphalt plants, regarding which the Union has filed a grievance.
The Union claims that the strike is over only the unfair labor practice involving Russell, where Russell was laid off; was not called back by Gallagher but rather was sent back to work by the Union; was not paid for the three weeks that he was not working; and was not restored to his position on the "first crew." The Union has not filed a grievance on Russell's behalf, but has filed a National Labor Relations Board ("NLRB") charge against Gallagher; the charge is still pending.
The strike is preventing Gallagher from doing work on its projects, including an extensive I-80 resurfacing project. The work stoppage is costing Gallagher at least a quarter of a million dollars per day, and is affecting other companies and workers employed on the I-80 project and other projects in which Gallagher is involved.
The collective bargaining agreement between Gallagher and the Union ("agreement") contains a mandatory arbitration provision, which requires arbitration of any claim or dispute involving an interpretation or application of the agreement by an employee, the Union, Gallagher, or the bargaining agent that any of the other is violating or has violated the agreement. (Compl. for Injunction and Damages Ex. 1 at 17.) The agreement also contains a no-strike provision, prohibiting strikes or work stoppages by the Union, except under three circumstances: where Gallagher fails to pay pension, health, vacation, or dues contributions; where Gallagher fails to pay wages, with one exception to be discussed below; and where an employee refuses to enter property involved in a legitimate labor dispute or cross a picket line. (Id. at 28-29.)
The one exception to the no-strike exception regarding failure to pay wages applies where a bona fide dispute over the amount of wages due exists. (See id. at 29.) Thus, the provision allowing strikes over non-payment of wages is "inoperative if the amount of wages it bonafidely [sic] disputed. In such instance, [Gallagher] shall then pay the wages admitted to be due and the balance shall be settled by the arbitration procedure as provided herein." (Id.) In other words, where Gallagher and the Union have a legitimate dispute over the amount of wages due to an employee, the dispute is subject to mandatory arbitration, and the Union may not strike over the dispute.
Gallagher contends that this court can and should enjoin the Union from striking, since the strike, which is causing Gallagher substantial and irreparable harm, is over issues that are subject to the mandatory arbitration and no-strike provisions under the agreement. The Union counters that the strike is over only the unfair labor practice involving Russell, which is not subject to the no-strike provision.
Section 301(a) of the Labor Management Relations Act authorizes lawsuits for violation of contracts between employers and unions to be brought in federal district court. 29 U.S.C. § 185(a). In Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957), the Supreme Court held that a grievance arbitration provision in a collective bargaining agreement could be enforced through a section 301(a) lawsuit. United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 577-78, 80 S. Ct. 1347, 1349, 4 L. Ed. 2d 1409 (1960) (citing Textile Mills, 353 U.S. at 456-57, 77 S. Ct. at 917-18). The Supreme Court also stated that "the policy to be applied in enforcing this type of arbitration was that reflected in our national labor laws," and that "the present federal policy is to promote industrial stabilization through the collective bargaining agreement." Id. (citing Textile Mills, 353 U.S. at 453-54, 456-57, 77 S. Ct. at 916, 917-18).
Thus, "[a] major factor in achieving industrial peace is the inclusion of a provision for arbitration of grievances in the collective bargaining agreement." Warrior and Gulf, 363 U.S. at 578, 80 S. Ct. at 1350. In fact, "complete effectuation of the federal policy is achieved when the agreement contains both an arbitration provision for all unresolved grievances and an absolute prohibition of strikes, the arbitration provision being the 'quid pro quo' for the agreement not to strike." Id. n.4 (citing Textile Workers, 353 U.S. at 455, 77 S. Ct. at 917).
In Warrior and Gulf, the Supreme Court explicitly stated that Congress, through section 301(a), has assigned the federal district courts the duty of determining whether a party who refuses to arbitrate has breached its promise to arbitrate under a collective bargaining agreement. Warrior and Gulf, 363 U.S. at 582, 80 S. Ct. at 1353. Thus, "the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance." Id. The court should order the parties to arbitrate the grievance "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." Id. Doubts should be resolved in favor of coverage by the arbitration clause. Warrior and Gulf, 363 U.S. at 583, 80 S. Ct. at 1353. See also Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 377-379, 94 S. Ct. 629, 636-38, 38 L. Ed. 2d 583 (1974) (discussing the "presumption of arbitrability for labor disputes").
Expanding upon Textile Workers, Warrior and Gulf, and similar cases, the Supreme Court held in Boys Markets, Inc. v. Retail Clerks Union, Local 770, that a federal district court may enjoin a strike that violates a mandatory arbitration clause in a collective bargaining agreement. 398 U.S. 235, 253, 90 S. Ct. 1583, 1593-94, 26 L. Ed. 2d 199 (1970). The Court ...